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Time for permanent disbarment?

A solution in search of a problem

By David Cameron Carr

David Cameron Carr
Carr
Another View
Stand up now and stop the sleaze

The flavor of the month in attorney discipline is the idea of permanent disbarment. In the wake of publicity over the second disbarments of four attorneys, it has, as it does from time to time, resurfaced.

And again, it will sink. Permanent disbarment is discredited every time it is proposed. 

Part of it is that it is a solution in search of a problem. The vast majority of attorneys who have been reinstated have performed honorably and ably. The reinstatement process is difficult; it imposes an extraordinary burden on the disbarred or resigned attorney to demonstrate rehabilitation from the prior misconduct. Those that can meet this test generally do well.

As an example, see my fellow San Diegan, David Demergian. If anyone deserved to be disbarred, he surely did. If you don’t believe me, read his story for yourself (In re Demergian (1989) 48 Cal.3d 284.) Since his rehabilitation and reinstatement, Mr. Demergian has been a beacon of hope for attorneys and judges with alcohol and substance abuse problems through The Other Bar. No one who has heard him speak of the depths of his personal hell and how he came back from it could be unmoved. He is also a damn fine lawyer.

The California Supreme Court in the modern era has never thought that permanent disbarment is necessary or desirable. The court, in the exercise of its plenary power over discipline, could impose permanent disbarment where it thought warranted. (In re Tyler (1888) 78 Cal. 307, 310; Bus. & Prof. Code §6100.) It has not done so since 1938 (In re Craig (1938) 12 Cal.2d 93.)

The last time that a rule change endorsing permanent disbarment as an option was proposed was 1994, by the Disciplinary Evaluation Commission (DEC). In response, the State Bar Board of Governors drafted a new version of State Bar Rule of Procedure 662, allowing the State Bar Court to recommend permanent disbarment.

The Supreme Court then reminded the board of governors who is in charge by suspending the operation of new rule 662, pending its review. Since 1996, the Supreme Court has never spoken on the proposed new rule.

Permanent disbarment clashes with the Supreme Court’s often stated principle that “the courts are interested in the regeneration of erring attorneys and it is not the policy of the law, nor is it in the interest of justice, that an attorney who has been disbarred shall never be readmitted to practice.” Wettlin v. State Bar (1944) 24 Cal.2d 862, 869. The Supreme Court believes that lawyers are human beings, capable of change, capable of rehabilitation.

But the Supreme Court has also stated that reinstatement requires a compelling showing of rehabilitation, met by demonstrating a sustained period of exemplary conduct (Menna v. State Bar (1995) 11 Cal.4th 975.) Reinstatement is not often sought and then seldom granted. Since 1995, the Supreme Court has only granted reinstatement in 56 cases, roughly a third of the reinstatement petitions filed in State Bar Court.

Who is beating the drum for permanent disbarment? It is not clear, but the motivation may be financial. The State Bar’s Office of Chief Trial Counsel doggedly opposes every reinstatement, resulting in a multi-day trial in almost every case, making the process extremely expensive, both for State Bar and the petitioner. The board of governors recently raised the reinstatement filing fee to $1,600; far less than the $10,000 that some members of the board wanted to impose but an effective barrier to reinstatement for most. Petition-ers for reinstatement can pay $30,000 or more in costs and attorney’s fees.

Simply eliminating reinstatement would help the State Bar balance its budget without raising bar dues. But it would not make the public any safer. It would probably make the public less safe by inhibiting the State Bar Court from imposing such an unjust sanction. The DEC commission recommended that permanent disbarment be used “sparingly and that the circumstances where it can be imposed be spelled out.”

Permanent disbarment has an emotional resonance to those who view the legal profession with distrust. It caters to their cynical view of lawyers in particular and human nature in general. Like all simplistic solutions, it ignores the complexity of human nature.

The reinstatement process is not perfect. It can’t guarantee that a successful petitioner will never re-offend. But it works and works well enough to protect the public and encourage the rehabilitation of erring attorneys. Permanent disbarment will do neither.

San Diego lawyer David Cameron Carr represents attorneys in disciplinary proceedings before the State Bar.

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